People v. Herbert, 22 N.Y.2d 601 (1968)
The term “public officer” in the New York Constitution, mandating forfeiture of office for refusing to waive immunity, extends beyond high-ranking officials to encompass any public employee with knowledge of wrongdoing in their area of official responsibility.
Summary
This case concerns whether a parking fee collector, who refused to waive immunity during a grand jury inquiry into his conduct in that role, could forfeit his subsequent position as Commissioner of Street Sanitation. The Court of Appeals held that the constitutional provision requiring forfeiture for refusing to waive immunity applies to any public employee with knowledge of wrongdoing, regardless of rank. The court reasoned that the purpose of the provision is to ensure accountability in public service, and this purpose would be undermined if lower-ranking employees could conceal wrongdoing with impunity.
Facts
The defendant, Herbert, served as Acting Head Parking Fee Collector and Parking Fee Collector for the City of Buffalo from 1954 to 1966.
In January 1966, he was appointed Commissioner of Street Sanitation for the city.
In March 1966, a grand jury investigated Herbert’s conduct in his prior parking fee collecting positions.
Herbert was subpoenaed, informed of the inquiry, and asked to sign a waiver of immunity related to his parking fee offices, which he refused.
Procedural History
The People and the Attorney General brought an action to forfeit Herbert’s position as Commissioner of Sanitation under Article I, Section 6 of the New York Constitution.
The Special Term and the Appellate Division ruled that Herbert’s prior positions were not “public offices” within the meaning of the constitutional provision.
The suit for forfeiture was dismissed, and judgment was entered for Herbert.
Issue(s)
Whether the positions of Parking Fee Collector and Acting Parking Fee Collector constitute “public office” as the term is used in Section 6 of Article I of the New York Constitution, such that refusal to waive immunity during a grand jury investigation into those offices could lead to forfeiture of a subsequently held public office.
Whether compelling forfeiture of office for refusing to waive immunity violates the Fifth Amendment protection against self-incrimination under the U.S. Constitution.
Holding
Yes, because the constitutional policy requires any person in public service to disclose knowledge of criminal wrongdoing in that place, regardless of rank, or risk their official position.
No, because the court determined that the state has a right to discharge a public official who invokes the privilege against self-incrimination when asked questions specifically, directly, and narrowly relating to the performance of his official duties.
Court’s Reasoning
The court reasoned that a narrow interpretation of “public officer” would create an illogical and harmful distinction, allowing lower-ranking employees to conceal wrongdoing while holding higher-ranking officials accountable.
The court emphasized that the purpose of the constitutional provision is to impose a duty to disclose knowledge of crimes in the public service, a duty that applies equally to officials of high and low degree. The court found this to be the intent of the 1938 Constitutional Convention.
The court dismissed the argument that subsequent amendments to the provision indicated a legislative intent to distinguish between different levels of public employment. The court cited the legislative history of those amendments, which focused on closing loopholes in the original provision rather than creating new distinctions.
Regarding the Fifth Amendment issue, the court acknowledged the Supreme Court’s decisions in Spevack v. Klein and Garrity v. New Jersey, which addressed the privilege against self-incrimination. However, the court distinguished those cases, noting that they did not directly address the situation of a public official refusing to answer questions related to their public employment. The court quoted from Spevack, noting the express reservation of judgment on the question of whether a policeman could be discharged for refusing to testify about his conduct as a police officer.
The court concluded that the state has a right to discharge a public official who refuses to testify about their public employment, and that this right does not create an inescapable conflict with the Fifth Amendment.
The court stated the contemporary view of the 1949 amendment: “that a public official refusing to testify before a grand jury * * * under waiver of immunity, should be removed from office” but that People v. Harris “has disclosed a loophole” which it was suggested be corrected “to prevent avoidance of the clear intent” of the 1938 amendment.